1. Dira Nath and Chandra Nath were two brothers and they lived joint in mess and property. Chandra Nath's first wife having died at a late stage of his life, he married the mother of defendant 5, and in consideration of the marriage the two brothers executed a deed of gift in respect of some of their properties and made over the deed of gift to the girl who was then a minor, aged 13 or 14 years, and who died a minor after giving birth to defendant 5 in about two years from her marriage. Dina Nath and Chandra Nath remained in possession of the property covered by the deed of gift and in 1301 made a usufructuary mortgage of the same to defendant 1. In 1306 the redeemed the mortgage and sold the property to defendant 1. The date of the sale was 16th February 1900. Defendant 5 came of age on 27th February 1907, and in February 1912 sold the property covered by the gift to the plaintiffs, who brought this suit on 12th February 1912 for recovery of possession on the strength of their purchase from defendant 5. The first Court dismissed the suit as barred by limitation. The lower appellate Court has reversed that decision and decreed the suit holding that it was brought within 12 years from the date of the sale and was therefore not barred.
2. It is contended before us that the lower appellate Court was wrong. Chandra Nath may be taken to have been the guardian of his minor wife and minor son defendant 5, but Dina Nath was in no sense the guardian of any of these minors. Dina Nath's possession therefore was not the possession of a guardian or a trustee; his possession after the deed of gift must be taken to have been adverse and that being for a period much more than 12 years, the suit is clearly barred as to a moiety of the property. As regards the other moiety, Chandra Nath was the guardian and he made an alienation in fraud of the minor's right; the minor was therefore entitled to set aside the alienation within 3 years from 1907 under Article 44, of the Schedule to the Limitation Act.
3. As he did not bring such a suit his right to set aside the sale became barred. As he could not recover possession without setting aside the sale his right to recover possession was also consequently barred and he could not in 1912 pass any title to the plaintiffs. It is contended that the bar of the right to set aside the sale should not bar the right to recover possession and if the right to recover possession is not barred defendant 5 had a subsisting title which could pass to the plaintiffs. This argument would have been of weight if the sale were ab initio void. That is however not the case. A sale by a guardian is only voidable and is valid until avoided. This avoidance must be by a suit within 3 years under Article 44, Sch. 1, Lim. Act. As the ward cannot recover possession without the sale his right to recover possession is also gone. In the case of Gnanasambanda Pandaram Sannadhi v. Velu Pandaram . 1900 23 Mad 271 their Lordships of the Privy Council said:
“Chokalinga attained majority in 1880 and bad by Article 44 of the Act three years for suing to set aside the sale by his guardian. He did not do so and by Section 28 of the Lim. Act, his right became extinguished.”
4. In the case of Jagadamba Chaodhrani v. Dahhina Mohun Roy . 1886 13 Cal 308, the Judicial Committee of the Privy Council held that if an adoption has to be set aside before a party can recover possession the bar to the right to set aside the adoption is a bar to the recovery of possession. Later on the same tribunal held in the case of Malkarjun v. Narhari . 1901 25 Bom 237 that anybody who desires a relief inconsistent with an intermediate sale which has to be set aside, may and should pray to set it aside; the bar to the setting aside of the sale bars the suit for the relief so inconsistent. Here the vendor of the plaintiff could not recover possession without setting aside the sale by his guardian and the plaintiffs are in no better position. The appeal must therefore be allowed and the decree of the learned Munsif restored with costs in all Courts.
V.B/R.K
5. Appeal allowed.